Anurag Deb, PhD
researcher, Queens University Belfast, and Colin Murray, Professor of
Law, Newcastle Law School

Photo credit: Aaronward, via Wikicommons media

Extensive provisions of an Act of
Parliament have been disapplied by a domestic court in the UK for the first
time since Brexit. That is, in itself, a major development, and one which
illustrates the power of the continuing connections between the UK and EU legal
orders under the Withdrawal Agreement. It is an outcome which took many by
surprise, even though we have argued at length
that the UK Government has consistently failed to recognise the impact of
Article 2 in rights cases. So here is the story of this provision of the
Withdrawal Agreement, the first round of the Dillon
case, and why understanding it will matter for many strands of the current
government’s legislative agenda.

Article 2 of the Windsor
Framework, as the UK Government insists on calling the entirety of what was the
Northern Ireland Protocol (even though the Windsor Framework did nothing to
alter this and many other provisions), is one of the great survivors of this
most controversial element of the Brexit deal. Whereas other parts of the
Brexit arrangements for Northern Ireland have been repeatedly recast, the
wording of this provision has remained remarkably consistent since Theresa May
announced her version of the Brexit
deal in November 2018
(although it was Article 4 in that uncompleted
version of the deal).

The provision was tied up
relatively early in the process. Indeed, it suited the UK Government to be able
to claim that rights in Northern Ireland were being protected as part of the
Withdrawal Agreement, to enable them to avoid claims that Brexit was
undermining the Belfast/Good Friday Agreement of 1998. Although the 1998
Agreement makes limited mention of the EU in general, it devotes an entire
chapter to rights and equality issues, and EU law would play an increasing role
with regard to these issues in the years after 1998.   

The UK Government made great play
of explaining, in 2020, that its Article 2 obligations reflected its ‘steadfast
commitment to upholding the Belfast (“Good Friday”) Agreement (“the Agreement”)
in all its parts’ (para
1
). Even as it appeared ready to rip up large portions of the Protocol, in
the summer of 2021, the Article 2 commitments continued to be presented as ‘not
controversial’ (para
37
). It might more accurately have said that these measures were not yet
controversial, for no one had yet sought to use this provision to challenge the
operation of an Act of Parliament. In a powerful example of Brexit “cake-ism”,
the UK Government loudly maintained that Article 2 was sacrosanct only because
it had convinced itself that the domestic courts would not be able to make much
use of it.

Little over a month ago, the Safeguarding
the Union Command Paper all-but sought to write the rights provision out of the
Windsor Framework (para
46
):

The important
starting point is that the Windsor Framework applies only in respect of the
trade in goods – the vast majority of public policy is entirely untouched by
it. … Article 2 of the Framework does not apply EU law or ECJ jurisdiction, and
only applies in the respect of rights set out in the relevant chapter of the
Belfast (Good Friday) Agreement and a diminution of those rights which arises
as a result of the UK’s withdrawal from the EU.

Article 2 is a complex and
detailed provision, by which (read alongside Article 13(3)) the UK commits that
the law in Northern Ireland will mirror developments in EU law regarding the
six equality directives listed in Annex 1 of the Protocol and, where other
aspects of EU law protect aspects of the rights and equality arrangements of
the relevant chapter of the 1998 Agreement, that there will be no diminution of
such protections as a result of Brexit. But notwithstanding the complexity of
these multi-speed provisions, by no construction can it be tenable to suggest
that ‘the Windsor Framework applies only in respect of the trade in goods’.

The Dillon
judgment marks the point at which the Government’s rhetoric is confronted by
the reality of the UK’s Withdrawal Agreement obligations, and the extent to
which they are incorporated into domestic law by the UK Parliament’s Withdrawal
legislation. The case relates to the controversial Northern Ireland
Troubles (Legacy and Reconciliation) Act 2023
, heralded by the UK
Government as its vehicle for addressing the legal aftermath of the Northern
Ireland conflict. This Act, in preventing the operation of civil and criminal
justice mechanisms in cases relating to the conflict, providing for an
alternate body for addressing these legacy cases (Independent Commission for
Reconciliation and Information Recovery) and requiring this body to provide for
immunity for those involved in causing harms during the conflict, has provoked
widespread concern within and beyond Northern Ireland.

The Act has been the subject of
challenges under the Human Rights Act 1998 and an inter-state action against
the UK launched before the European Court of Human Rights by Ireland. In the
interest of brevity, however, this post will explore only the challenges under
the Protocol/Windsor Framework. This is not the first case to invoke Article 2
(see here
and here
for our analysis of earlier litigation to which the UK Government should have
paid more attention), but this remains the most novel element of the
litigation, testing the operation of this element of the Withdrawal Agreement.
It is also offers the most powerful remedy directly available to those
challenging the Act; disapplication of a statute to the extent that it
conflicts with those elements of EU law which this provision preserves.

These requirements are explained
by the operation of Article 4 of the Withdrawal Agreement, which spells out
that elements of the Withdrawal Agreement and the EU law which continues to be
operative within the UK as a result of that Agreement will continue to be
protected by the same remedies as applicable to breaches of EU law by Member
States. Section 7A of the European
Union (Withdrawal Act) 2018
reflected this obligation within the UK’s
domestic jurisdictions, as accepted by the UK Supreme Court in the Allister
case (see here
for analysis). For Mr Justice Colton, his task could thus be summarised
remarkably easily; ‘any provisions of the 2023 Act which are in breach of the
WF [Windsor Framework] should be disapplied’ (para 527). All he had to do,
therefore, was assess whether there was a breach.

The rights of victims are a
prominent element of the Rights, Safeguards and Equality of Opportunity chapter
of the 1998 Agreement. These rights were, in part, given protection within
Northern Ireland Law through the operation of the Victims’
Directive
prior to Brexit and, insofar as this EU law is being implemented,
through the operation of the EU Charter of Fundamental Rights with regard to
its terms. The key provision of the Victims’ Directive is the guarantee in
Article 11 that applicants must be able to review a decision not to prosecute,
a right clearly abridged where immunity from prosecution is provided for under
the Legacy Act. The breach of this provision alone was therefore sufficient to
require the application of extensive elements of the Legacy Act (sections 7(3),
8, 12, 19, 20, 21, 22, 39, 41, 42(1)) (para 608):

It is correct
that article 11(1) and article 11(2) both permit procedural rules to be
established by national law. However, the substantive entitlement embedded in
article 11 is a matter for implementation only and may not be taken away by
domestic law. The Directive pre-supposes the possibility of a prosecution. Any
removal of this possibility is incompatible with the Directive.

The UK Government cannot claim to
have been blindsided by this conclusion. They explicitly acknowledged the
specific significance of the Victims’ Directive for the 1998 Agreement commitments
in their 2020 Explainer on Article 2 (para
13
). Moreover, in the context of queries over the application of Article 2
to immigration legislation, the UK
Government
insisted that in making provisions for victims the 1998
Agreement’s ‘drafters had in mind the victims of violence relating to the
conflict in Northern Ireland’. Exposed by these very assertions, the Government
hoped to browbeat the courts with a vociferous defence of the Legacy Act (going
so far as to threaten consequences against Ireland for having the temerity to
challenge immunity arrangements which raised such obvious rights issues).

The strange thing about the Dillon
case, therefore, is not that the court disapplied swathes of the Legacy Act. This
outcome is the direct consequence of the special rights protections that the UK
agreed for Northern Ireland as part of the Withdrawal Agreement. The strange
thing is that Mr Justice Colton arrived at this position so readily, in the
face of such a determined efforts by the UK Government to obscure the extent of
the rights obligations to which it had signed up. In the context of the UK’s
full membership of the EEC and its successors, it took many years and many
missteps to get to Judicial Committee of the House of Lords applying the remedy
of disapplication of statutory provisions which were in conflict with EU law
(or Community law, as it then was) in Factortame (No. 2).
The Northern Ireland High Court was not distracted from recognising that these
requirements remain the same within Northern Ireland’s post-Brexit legal
framework when it comes to non-diminution of rights as a result of Brexit.

Indeed, the Court could not be so
distracted. As we set out above, once Colton J determined that relevant
sections of the Legacy Act had breached the Victims’ Directive, the judge had
no discretion in the matter of disapplying the offending sections. This marks
perhaps one of the strangest revelations to emerge from Brexit. Disapplication of
inconsistent domestic law (of whatever provenance) as a remedy extends across
much of the Withdrawal Agreement, covering any and every aspect of EU law which
the Agreement makes applicable in the UK. This fact – spelled out in the crisp terms
of Article 4 of the Withdrawal Agreement – was nowhere to be found in the 1972
Accession Treaty by which the UK became part of the (then) EEC. This is
unsurprising, considering that the primacy of Community law over domestic law
was then a relatively recent judicial
discovery
. In the decades since then, however, the principle of EU law
primacy and the requirement that inconsistent domestic laws be disapplied have
become a firm and irrevocable reality. Small wonder then, that the UK
Government accepted it as a price to pay for leaving Brussels’ orbit without
jeopardising the 1998 Agreement – no matter how it has since spun the notion of
“taking back control”.

Where the government might have
its own interests in attempting to obscure the clarity of Article 2 and its
attendant consequences, Dillon is by some measure a wake-up call for
Westminster. The report
of the Joint Committee on Human Rights’
scrutiny of the Bill which became
the Legacy Act contained no reference to the Windsor Framework, notwithstanding
consistent work by the statutory Human Rights and Equality Commissions in
Northern Ireland (the NIHRC and ECNI) to highlight the issue. Dillon marks
not only some of the most extensive disapplication of primary legislation ever
enacted by Parliament, but also the first such outcome after Brexit. But Dillon
is only the beginning. It will be followed in the weeks to come by a challenge
to the Illegal
Migration Act 2023
by the NIHRC, where there are clear arguments that relevant
EU law has been neglected. The Government, and Westminster in general, have not
woken up to the legal realities of the Brexit deal. Dillon makes clear
that Parliament needs to pay far greater attention to the Windsor Framework;
not as a legal curio that only occasionally escapes its provincial relevance,
but as a powerful source of law which impacts law-making and laws which are
intended to apply on a UK-wide basis.